Filed 5/21/13 P. v. Negrette CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE GUILLERMO NEGRETE,

Defendant and Appellant.

 H037760

 (Monterey County

 Super. Ct. Nos. SS090134A,

 SS110536A)

I. INTRODUCTION

Defendant Jose Guillermo Negrete appeals after pleading no contest to receipt of 

stolen property (Pen. Code, § 496, subd. (a))1in case No. SS090134A, to unlawful sexual 

intercourse with a minor (§ 261.5, subd. (c)) in case No. SS110536A, and to 

misdemeanor violations of sections 415, subdivision (1) and 148, subdivision (a)(1) in a 

third case. Defendant was sentenced in the two felony cases to two years eight months in

jail pursuant to section 1170, subdivision (h).

On appeal, defendant contends that he is entitled to additional presentence 

conduct credit in the receipt of stolen property case (No. SS090134A) pursuant to the 

January 2010 version of section 4019. Defendant further contends that he is entitled to 

 

1 All further statutory references are to the Penal Code unless otherwise indicated.
2

monetary credit under section 2900.5, subdivision (a) toward fines and fees in that case 

and in the unlawful sexual intercourse case (No. SS110536A) for any excess time that he 

spent in custody.

For reasons that we will explain, we will modify the judgment in the receipt of 

stolen property case (No. SS090134A) by awarding defendant a total of 226 days conduct 

credit and affirm the judgment as so modified. In the unlawful sexual intercourse case 

(No. SS110536A), we will affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Receipt of Stolen Property Case (No. SS090134A)

In mid-2009, in case No. SS090134A, defendant was charged by complaint with 

vehicle theft (Veh. Code, § 10851, subd. (a); count 1) and misdemeanor driving without a 

license (Veh. Code, § 12500, subd. (a); count 2). The complaint was subsequently 

amended to add count 3, receipt of stolen property (§ 496, subd. (a)). Defendant pleaded 

no contest to count 3. On October 1, 2009, the trial court suspended imposition of 

sentence and placed defendant on probation for three years with various terms and 

conditions, including that he serve 180 days in county jail. The court granted defendant 

60 days of custody credits, consisting of 40 actual days plus 20 days conduct credit. 

Defendant was ordered to pay various fines and fees. The remaining counts were 

dismissed.

In April 2010, the probation department filed a petition alleging that defendant had 

violated his probation. Defendant admitted violating his probation. The trial court 

revoked and reinstated probation with modified terms and conditions.

In August 2010, the probation department filed a second petition alleging that 

defendant had violated his probation. Probation was summarily revoked and a bench 

warrant was issued after defendant failed to appear at a hearing on the petition. After 

defendant was in custody, he admitted violating his probation. The trial court reinstated 

probation with modified terms and conditions. Defendant was to serve 30 days in jail. 
3

The court granted defendant 27 days of custody credits, consisting of 19 actual days plus 

8 days conduct credit.

B. Misdemeanor Case (No. MK087513A)

In January 2011, the probation department filed a third petition in the receipt of 

stolen property case alleging that defendant had violated probation by failing to obey all 

laws. The new offenses apparently took place in January 2011 and resulted in defendant 

being charged in a new case, No. MK087513A.2 Defendant pleaded no contest in the 

new case to misdemeanor violations of sections 415, subdivision (1) and 148, 

subdivision (a)(1), and he admitted violating his probation in the receipt of stolen 

property case (No. SS090134A).

C. Unlawful Sexual Intercourse Case (No. SS110536A)

Before defendant was sentenced in the receipt of stolen property and misdemeanor 

cases, in March 2011 the probation department filed a fourth petition in the receipt of 

stolen property case alleging that defendant had violated his probation by failing to obey 

all laws. Defendant was subsequently charged by complaint in a new case, 

No. SS110536A, with three counts of unlawful sexual intercourse with a minor (§ 261.5, 

subd. (c)). The complaint further alleged that as to count 2, defendant personally 

inflicted great bodily injury upon the victim (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8), 

667.5, subd. (c)(8)). Defendant pleaded no contest to count 1, which was based on an 

incident that took place on or about January 2010. Defendant also admitted violating his 

probation in the receipt of stolen property case (No. SS090134A).

A combined sentencing hearing was held in May 2011. In the most recent case, 

the unlawful sexual intercourse case (No. SS110536A), the trial court suspended 

imposition of sentence and placed defendant on probation for three years with various 

 

2

The factual and procedural background concerning case No. MK087513A is 

taken from the record in case Nos. SS090134A and SS110536A.
4

terms and conditions, including that he serve 132 days in county jail. The court granted 

defendant 132 days of custody credits, consisting of 66 actual days plus 66 days conduct 

credit. Defendant was ordered to pay various fines and fees. The remaining counts were 

dismissed. In the misdemeanor case (No. MK087513A), defendant was placed on 

probation with various terms and conditions, including that he serve two days with credit 

for two days. In the receipt of stolen property case (No. SS090134A), the court reinstated 

probation with modified terms and conditions, including that he serve 365 days in county 

jail. The court granted defendant 314 days of custody credits, consisting of 210 actual 

days plus 104 days conduct credit.

D. Most Recent Probation Violations and Sentencing

In late 2011, the probation department filed petitions in the receipt of stolen 

property case (No. SS090134A) and the unlawful sexual intercourse case 

(No. SS110536A) alleging that defendant had violated his probation. Defendant admitted 

violating his probation in each case.

A combined sentencing hearing was held on November 29, 2011. Defendant was 

sentenced in the two felony cases to a total term of two years eight months in jail 

pursuant to section 1170, subdivision (h). The sentence was calculated as follows. In the 

receipt of stolen property case (No. SS090134A), the trial court sentenced defendant to 

the middle term of two years. The court granted defendant 434 days of custody credits, 

consisting of 290 actual days plus 144 days conduct credit. Defendant was ordered to 

pay a fine. In the unlawful sexual intercourse case (No. SS110536A), the court sentenced 

defendant to eight months (one-third the middle term) consecutive to the term in the 

receipt of stolen property case. No custody credits were awarded in the unlawful sexual 

intercourse case. Defendant was ordered to pay a fine. In the misdemeanor case 

(No. MK087513A), the court stated it would “terminate probation with . . . 81 days[] 

credit, 54 actual, 27 conduct credits.”
5

On January 4, 2012, after filing a notice of appeal, defendant filed an amended 

notice of appeal in the receipt of stolen property case (No. SS090134A) and the unlawful 

sexual intercourse case (No. SS110536A).

E. Motion for Additional Conduct Credit

In March 2012, defendant filed a motion in the trial court seeking (1) correction of 

clerical error in the abstract of judgment regarding custody credits, and (2) additional 

conduct credit based on various versions of section 4019 and the state and federal equal 

protection clauses.

At a subsequent hearing, the district attorney conceded that there was clerical error 

in the abstract of judgment concerning custody credits. The abstract of judgment was 

thereafter amended to correct the clerical error.

The district attorney eventually filed written opposition to defendant‟s motion for 

additional conduct credit under section 4019 and equal protection principles. Following a 

hearing on the motion, the trial court took the matter under submission. The court denied 

defendant‟s motion by written order, concluding that defendant was not entitled to 

additional conduct credit in either the receipt of stolen property case (No. SS090134A) or 

the unlawful sexual intercourse case (No. SS110536A).

On September 24, 2012, defendant filed a notice of appeal regarding the trial 

court‟s order.

III. DISCUSSION

Defendant contends that the trial court should have calculated his conduct credit in 

the receipt of stolen property case (No. SS090134A) pursuant to the January 2010 version 

of section 4019 for his time in custody after January 25, 2010. Under this version of 

section 4019, defendant argues that he is entitled to a total of 226 days conduct credit, 

rather than the 144 days granted by the court. Defendant further contends that he is 

entitled to monetary credit under section 2900.5, subdivision (a) toward fines and fees in 
6

that case and in the unlawful sexual intercourse case (No. SS110536A) for “any excess 

time” that he spent in custody.

The Attorney General contends that defendant has forfeited his claim “because he 

failed to move for correction of the record to modify credits in the trial court.” To the 

extent the claim has been preserved, the Attorney General contends that defendant is not 

entitled to additional conduct credit or that he is entitled to an additional 10 days at most.

A. Forfeiture

We determine that defendant has not forfeited his claim. Defendant raised the 

issue of additional conduct credit by motion in the trial court. Further, a “narrow 

exception” to the forfeiture rule exists for “ „ “unauthorized sentences” or sentences 

entered in “excess of jurisdiction.” ‟ [Citation.] Because these sentences „could not 

lawfully be imposed under any circumstance in the particular case‟ [citation], they are 

reviewable „regardless of whether an objection or argument was raised in the trial . . . 

court.‟ [Citation.]” (People v. Smith (2001) 24 Cal.4th 849, 852.) In this case, defendant 

essentially contends that the trial court applied the wrong law in calculating his conduct 

credit. Defendant may therefore raise the issue on appeal.

B. Conduct Credit

In the receipt of stolen property case (No. SS090134A), defendant committed his 

offense in 2009, and he thereafter spent varying lengths of time in custody before the 

November 2011 sentencing hearing. In denying defendant‟s post-judgment motion for 

additional conduct credit under the January 2010 version of section 4019, the trial court 

stated that defendant‟s offense predated that amendment to section 4019 and therefore the 

conduct credit formula provided by that amendment did not apply.

The version of section 4019 in effect during 2009 authorized two days of conduct 

credit for every four days spent in local custody. (Former § 4019, subd. (f), as amended 

by Stats. 1982, ch. 1234, § 7; People v. Brown (2012) 54 Cal.4th 314, 318 & fn. 4 

(Brown).) Section 4019 was subsequently amended, operative January 25, 2010, to 
7

“increas[e] the rate at which prisoners in local custody could earn conduct credits for 

good behavior. Under the new formula, eligible prisoners could earn two days of conduct 

credit for every two days spent in local custody.[3]” (Brown, supra, at pp. 318-319; 

accord, Stats. 2009, 3d Ex. Sess., 2009-2010, ch. 28, § 50.) In Brown, the California 

Supreme Court held that the January 2010 version of section 4019 “applied 

prospectively, meaning that qualified prisoners in local custody first became eligible to 

earn credit for good behavior at the increased rate beginning on the statute‟s operative 

date.” (Brown, supra, at p. 318.) The court further explained that “[t]o apply former 

section 4019 prospectively necessarily means that prisoners whose custody overlapped 

the statute’s operative date (Jan. 25, 2010) earned credit at two different rates.” (Id. at 

p. 322, italics added.)

At the November 2011 sentencing hearing in the receipt of stolen property case 

(No. SS090134A), the trial court granted defendant 434 days of custody credits, 

consisting of 290 actual days plus 144 days conduct credit. Regarding actual days, the 

probation report reflects that defendant was in actual custody for 126 days in 2009, and 

for 164 days between June 2010 and November 2011. For the 126 days in actual custody 

in 2009, defendant is entitled to 62 days conduct credit. (See Brown, supra, 54 Cal.4th at 

p. 318; In re Marquez (2003) 30 Cal.4th 14, 25-26.) For the 164 days in actual custody 

between June 2010 and November 2011, defendant is entitled to 164 days conduct credit. 

(See Brown, supra, at p. 318.) Thus, defendant is entitled to a total of 226 days conduct 

 

3

“The relevant language of former section 4019 provided: „It is the intent of the 

Legislature that if all days are earned under this section, a term of four days will be 

deemed to have been served for every two days spent in actual custody . . . .‟ (Former 

§ 4019, subd. (f), italics added.) [¶] Prisoners who were required to register as sex 

offenders, had been committed for serious felonies, or had prior convictions for serious 

or violent felonies were not eligible for credit at the increased rate. (Former § 4019, 

subds. (b)(2), (c)(2).) . . .”
8

credit in the receipt of stolen property case, for a total of 516 days of custody credits 

(290 days actual plus 226 days conduct credit).

We understand the Attorney General to contend that defendant “already received 

all the credits he is due” in the receipt of stolen property case (No. SS090134A) because 

some of those credits were for time periods that overlapped with his time in custody in 

the misdemeanor case and/or the unlawful sexual intercourse case. The authority cited by 

the Attorney General in support of this argument is the following language from 

section 2900.5, subdivision (b): “[C]redit shall be given only where the custody to be 

credited is attributable to proceedings related to the same conduct for which the 

defendant has been convicted. Credit shall be given only once for a single period of 

custody attributable to multiple offenses for which a consecutive sentence is imposed.” 

The Attorney General fails to identify each of the particular time periods that should not 

have been credited toward the receipt of stolen property case (No. SS090134A) and fails 

to persuasively articulate why it was error for the trial court to give credit for each of 

those time periods.

The Attorney General next contends that, for the time defendant spent in actual 

custody between March 2011 and November 2011, the September 2010 version of 

section 4019 (see Stats. 2010, ch. 426, § 2; Brown, supra, 54 Cal.4th at p. 318, fn. 3) 

should be used to calculate defendant‟s conduct credit, rather than the January 2010 

version. We disagree. The September 2010 version of section 4019 expressly applied 

only to defendants who committed their crime on or after the effective date of 

September 28, 2010. (Stats. 2010, ch. 426, §§ 2, 5; see Brown, supra, at p. 318, fn. 3.) 

Defendant committed his offense in the receipt of stolen property case (No. SS090134A) 

in 2009 and committed his offense in the unlawful sexual intercourse case 

(No. SS110536A) on or about January 2010.
9

C. Monetary Credit

Defendant contends that, “[b]y the time this appeal will be decided, [he] will have 

served his sentence already,” and therefore he is entitled to monetary credit of $30 per 

day for each day in custody in excess of his sentence pursuant to section 2900.5, 

subdivision (a). Defendant requests that this court remand the matter to the trial court “to 

reduce his fees and fines accordingly.”

Section 2900.5, subdivision (a) provides: “In all felony and misdemeanor 

convictions, either by plea or by verdict, when the defendant has been in custody, 

including, but not limited to, any time spent in a jail, . . . all days of custody of the 

defendant, including days served as a condition of probation in compliance with a court 

order, credited to the period of confinement pursuant to Section 4019, and days served in 

home detention pursuant to Section 1203.018, shall be credited upon his or her term of 

imprisonment, or credited to any fine on a proportional basis, including, but not limited 

to, base fines and restitution fines, which may be imposed, at the rate of not less than 

thirty dollars ($30) per day, or more, in the discretion of the court imposing the sentence. 

If the total number of days in custody exceeds the number of days of the term of 

imprisonment to be imposed, the entire term of imprisonment shall be deemed to have 

been served. In any case where the court has imposed both a prison or jail term of 

imprisonment and a fine, any days to be credited to the defendant shall first be applied to 

the term of imprisonment imposed, and thereafter the remaining days, if any, shall be 

applied to the fine on a proportional basis, including, but not limited to, base fines and 

restitution fines.” (Italics added.) Section 2900.5, subdivision (a) thus expressly requires 

a trial court to apply a defendant‟s days of custody credits to the term of imprisonment 

first, and then apply any remaining days to any fine imposed on the defendant. (See 

People v. Robinson (2012) 209 Cal.App.4th 401, 406 (Robinson).)

The monetary credit “must be applied „on a proportional basis‟ [citation]. In other 

words, each dollar of monetary credit must be used proportionally to reduce the base fine, 
10

penalty assessments and restitution fine rather than any one of these categories alone. 

Thus, if the monetary credit does not eliminate all amounts due, the defendant still owes 

the remaining amount in each category.” (People v. McGarry (2002) 96 Cal.App.4th 

644, 646, fn. omitted (McGarry).) In McGarry, the Court of Appeal explained the 

arithmetic necessary to calculate a proportionate reduction in the base fine, penalty 

assessments, and restitution fine that had been imposed on the defendant in the case 

before it. (See id. at pp. 648-650.)

The monetary credit provided by section 2900.5, subdivision (a) applies only to 

“court-ordered payment of monies that serve as punishment, as opposed to court-ordered 

payment of monies for nonpunitive purposes.” (Robinson, supra, 209 Cal.App.4th at 

p. 407.) Thus, for example, monetary credit under section 2900.5, subdivision (a) may 

not be applied to the court security fee (now known as the court operations assessment; 

§ 1465.8, subd. (a)(1)), or to the court facilities assessment (Gov. Code, § 70373, 

subd. (a)(1)). (See Robinson, supra, at pp. 403-404, 407.)

In the receipt of stolen property case (No. SS090134A), the trial court sentenced 

defendant to the middle term of two years. As we have explained, defendant is entitled 

to a total of 516 days of custody credits (290 days actual plus 226 days conduct credit) 

in that case. Based on the record on appeal, defendant‟s custody credits do not exceed 

his two-year jail term, and therefore he is not entitled to monetary credit under 

section 2900.5, subdivision (a). Defendant‟s contention that he will have already served 

his sentence by the time this appeal is decided is without factual support in the record 

before us.

Defendant also concludes, without any supporting argument, that he is entitled to 

monetary credit in the unlawful sexual intercourse case (No. SS110536A). As the trial 

court did not award any custody credits in that case, and defendant does not challenge 

that ruling on appeal, defendant fails to articulate a basis for awarding monetary credit in 

that case.
11

IV. DISPOSITION

In case No. SS090134A, the judgment is modified by awarding defendant a total 

of 226 days conduct credit under section 4019. As so modified, the judgment is affirmed.

In case No. SS110536A, the judgment is affirmed.

___________________________________________

BAMATTRE-MANOUKIAN, J.

WE CONCUR:

________________________________

ELIA, ACTING P.J.

________________________________

MÁRQUEZ, J.